July 2013

July 31, 2013

Earlier this month, Gibson Dunn & Crutcher's Theodore Olson made headlines when he filed a lawsuit accusing the federal government of blocking private stockholders of Fannie Mae and Freddie Mac from getting their fair share. Since then, more than a half dozen plaintiffs firms have gotten into the game, filing related cases in Washington's federal district court and in the U.S. Court of Federal Claims.

The cases challenge an August 2012 agreement between the conservator of Fannie and Freddie—the Federal Housing Finance Agency—and the U.S. Department of Treasury that changed the structure of preferred stock purchase agreements held by Treasury.

According to the complaint, the 2012 agreement essentially diverted Fannie and Freddie's net worth to the Treasury Department, leaving no money to pay dividends on stocks held by private companies and individuals. The plaintiffs accused the government of making the change just as Fannie and Freddie were recovering from the economic downturn and posting profits.

With U.S. intelligence and Department of Justice officials looking on,
senators on Wednesday laid out plans to make the government's
data-gathering efforts more transparent.

Appearing at a Senate
Judiciary Committee hearing on U.S. surveillance, Democratic Senators
Dianne Feinstein of California and Al Franken of Minnesota said they are
working on bills that would help address privacy concerns in the wake
of leaks last month about the National Security Agency's collection of
data from phone and email users. The measures would follow the FISA Accountability and Privacy Protection Act
that Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)
introduced in June to require more public reporting of government
surveillance efforts, among other goals.

Feinstein, chairwoman
of the Senate Intelligence Committee, said she supports surveillance
programs that allow the government to sweep up user data as part of
antiterrorism efforts. But Congress can act to bring greater openness to
the government's surveillance efforts, she said.

Lawyers for the Massachusetts Institute of Technology and the digital library JSTOR continue to press their fight to intervene in a public records lawsuit to assert control over the scope of information the government is planning to release about the late Aaron Swartz.

In the dispute in Washington federal district court, MIT and JSTOR argue they should have some say over the ability to keep certain details secret before the government provides any information to the public. Wired investigative reporter Kevin Poulsen sued the Department of Homeland Security in April under the Freedom of Information Act. The suit now tests just how big a voice a third party can have in a public records case.

MIT's attorneys at Wilmer Cutler Pickering Hale and Dorr said in a court filing Tuesday night that the university, which provided information to law enforcement in the investigation of Swartz in a computer crimes case, "manifested an expectation" that the government would refrain from disclosing confidential information.

Much of the information MIT provided to the authorities, Wilmer lawyers said in their court filing, was in response to grand jury subpoenas amid the Swartz investigation. Swartz was ultimately charged in Boston federal court in connection to his downloading of millions of JSTOR articles via MIT networks. In January, while the case was still pending, he committed suicide.

WikiLeaks: A military judge acquitted Pfc. Bradley Manning on charges of aiding the enemy, but he was convicted on six counts of violating the Espionage Act of 1917. Manning is the source behind the thousands of military documents leaked to WikiLeaks. The New York Timesreports.

Warrantless: Authorities do not need a warrant for cell phone location data, a New Orleans federal appeals court has ruled. The opinion overturns a trial judge who said that the public is protected by the Fourth Amendment. The National Law Journal's Mike Scarcella reports.

Declassify: The Obama administration will declassify an order that Verizon Communications turn over millions of Americans' phone records to the National Security Agency. This is ahead of a 9 a.m. Senate Judiciary Committee hearing. The Washington Postreports.

July 30, 2013

The Senate confirmed a full slate of National Labor Relations Board nominations today, giving the board all five confirmed members for the first time in a decade.

The votes Tuesday afternoon came as part of a deal struck between Democrats and Republicans over executive nominations. It clears some of the legal uncertainty that has hung over the board since President Barack Obama's controversial NLRB recess appointments in January 2012.

By confirming the five nominees before leaving for the congressional summer recess, the Senate also avoids a shutdown of the NLRB in August. Otherwise, the board would have been without a quorum because one of the current member's term would end later that month.

Testifying at a Senate
Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer
Rights hearing, Intel General Counsel A. Douglas Melamed and Qualcomm
General Counsel Donald Rosenberg couldn't agree on whether the federal
government should upend the status quo on patents for Wi-Fi and other
technologies used by multiple companies' products.

Melamed,
whose company is the world's largest semiconductor chip maker, said the
tech industry is under threat from SEP holders that more and more
frequently back out on commitments to license their patents used in
industry-standard technologies on fair, reasonable, and
nondiscriminatory (FRAND) terms. He said the reneging has caused
"significant harm" to innovation, competition, and consumers, fueling a
need for the government to ensure that SEP holders live up to the FRAND
obligations under their licensing agreements.

Rosenberg, whose
company manufacturers semiconductors for wireless devices, said such
problems are "marginal," but thinks the courts and federal agencies are
appropriately handling SEP disputes that may exist.

Federal air marshal Jose Lacson argued he didn't disclose sensitive security information online because, well, he'd made up the stuff. None of the details, he said, were true.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit didn't buy the argument today, upholding the Transportation Security Administration's determination that Lacson had, indeed, revealed sensitive information about staffing and attrition rates.

In the appeals court, Lacson, who was fired in 2011, wasn't challenging his termination. He was fighting the government's argument that the information he disclosed on Officer.com—under the name "INTHEAIRCOP"—was sensitive security information.

"Like many people, Jose Lacson posted things online that he should not have," D.C. Circuit Chief Judge Merrick Garland wrote today. "The problem is that, unlike most people, Lacson was a Federal Air Marshal. And the things he posted did not concern relationships gone awry or parties that he should have avoided."

By early next week, hundreds of pages of previously sealed or redacted transcripts and pleadings in the Chandra Levy murder case are expected to become public. The first round of documents was sent out by the U.S. attorney's office last night, and more are expected to come out over the next week.

The documents will shed light on issues that the defense lawyers in the case say warrant a new trial. Ingmar Guandique was convicted in 2010 of killing Levy, a congressional intern, but the case was reopened late last year after prosecutors notified the court that they had learned of potentially impeaching evidence related to Armando Morales. Morales, who shared a cell with Guandique, testified at trial that Guandique confessed to him.

According to Guandique's lawyers at the Public Defender Service for the District of Columbia, the new information would contradict Morales' statements at trial that he had never come forward to law enforcement before. Defense lawyers have also accused prosecutors of failing to turn over evidence proving Morales' past contacts with law enforcement before the trial. Prosecutors have countered that the new information isn't as significant as Guandique's lawyers claim.

Can You Search Me Now?: The U.S. Court of Appeals for the First Circuit wants the U.S. Supreme Court to decide whether police need a warrant to search data on the cellphone of a person who's under arrest, Michael Scarcella of The National Law Journal reports.

Manning Verdict: A military judge expects to announce a verdict Tuesday in the court-martial of an Army private charged with aiding the enemy for giving U.S. secrets to WikiLeaks, The Associated Press reports.

Lawyer Framed: Prosecutors dropped DUI charges against a Florida lawyer after learning: The woman flirting with him at the restaurant that night worked for the law firm he faced off against in court that day; that she was texting her law firm; and that the law firm was texting the police officers waiting outside to bust him, The Tampa Bay Times reports.

July 29, 2013

A group of former U.S. Postal Service inspectors who are defendants in a businessman's long-running retaliation suit in Washington have turned to outside counsel to press their challenge in the U.S. Supreme Court as a trial date inches closer.

The Justice Department, which had fought for the inspectors in earlier litigation in the Supreme Court, did not file the latest petition, which asks the justices to review a ruling in the U.S. Court of Appeals for the D.C. Circuit that kept alive businessman William Moore's allegations.

The solicitor general's office has final say on any petitions brought on behalf of federal agencies and officials. That the Justice Department did not pursue the latest legal fight in the high court could mean the government saw no merit in taking the case any higher.

Jeffrey Lamken of Washington's MoloLamken represents the inspectors in the latest Supreme Court action. Lamken couldn't be reached for comment today about the petition, which was filed last week. The document asks the high court to resolve a divide among appellate court over the scope of qualified immunity in cases that alleged retaliatory prosecution.